Ex parte Hall

• Decision Date: 01 February 1951
• Docket Number: 6 Div. 187
• Parties: Ex parte HALL.
• Court: Alabama Supreme Court

Page 264

50 So.2d 264

255 Ala. 98

Ex parte HALL.

6 Div. 187.

Supreme Court of Alabama.

Feb. 1, 1951.

Morel Montgomery, of Birmingham, for petitioner.

Chas. H. Brown, of Birmingham, for respondent.

LAWSON, Justice.

This is an original petition for writ of mandamus to require the Honorable George Lewis Bailes, as judge of the circuit of Jefferson County, to vacate an order granting to the City of Birmingham, in accordance with its request, a jury trial in a case pending in that court by virtue of an appeal taken by petitioner from a conviction in the recorder's court of the city of Birmingham on the charge of vagrancy.

Upon the filing of the petition, respondent filed what is termed an answer. The issuance of the rule nisi was waived by agreement.

We forego any consideration of the question as to the appropriateness of the remedy. The appropriateness of the remedy seems to be conceded by the respective parties, who appear to be desirous of a decision on the merits.--Ex parte State ex rel. McLaughlin, 250 Ala. 579, 35 So.2d 507; Ex parte Whitt, 238 Ala. 33, 189 So. 71.

The case was submitted on the petition, the respondent's answer, petitioner's motion to strike the answer, and his replication to the answer. The motion to strike the answer is overruled. The replication to the answer need not be considered, inasmuch as the answer contains no averments of fact which can be controverted. The only effect of the answer is the statement by the respondent judge that he made and entered the order complained of in the petition, inasmuch as he was of the opinion that the ends of justice would be best served by a jury trial to determine the issues between the City of Birmingham and the petitioner. The petition contains an averment to the same effect as the respondent's so-called answer. As we view the case, it must be decided, in all respects, as if the answer had admitted the facts stated in the petition. We must look, therefore, to the averments of the petition to determine whether or not a case is made for the issuance of the writ of mandamus.

The petitioner, Sam Joseph Hall, Jr., was convicted on a charge of vagrancy in the recorder's court of the City of Birmingham on July 10, 1950. He perfected an appeal to the circuit court of Jefferson County. He made no demand for a jury trial in the circuit court. The cause was set for trial by the clerk of the circuit court on the non-jury docket. An order was entered to the effect that the cause be tried on November 14, 1950, before the respondent judge, Honorable George Lewis Bailes. No trial by jury having been demanded by the petitioner or by the City of Birmingham, the cause was called for trial before the respondent judge on November 14, 1950, and by agreement was continued to November 20, 1950. When the cause was called for trial on November 20, 1950, after the defendant had answered ready for trial, the City of Birmingham, by and through its counsel, demanded a trial by jury. The petitioner objected on the ground that he had not demanded a trial by jury; that the City of Birmingham was not entitled to demand a trial by jury; that even if the City was entitled to demand a trial by jury, it did not do so within the time required by law. The cause was continued to December 4, 1950, by the respondent judge. On December 4, 1950, the date to which the cause had been continued, the City of Birmingham renewed its request for trial by jury and, over the objection of petitioner, the respondent judge made and entered the following order:

'December 4, 1950, this cause coming on to be heard and the City of Birmingham, a Municipal Corporation, by oral motion in said open Court making demand for a jury in the trial of this cause; the Court is of the opinion that the ends of justice will be best served by a jury trial to determine the issues between said city and the defendant, and that the following order should be made.

'It is accordingly Ordered and Decreed that the City's motion and demand for a jury in this cause is hereby granted and this case is passed until the fifteenth day of January 1951 for trial.'

The petitioner excepted to the order granting the trial by jury and moved that it be stricken. The motion to strike was overruled, and the petitioner excepted. The cause was continued to January 15, 1951, for trial.

The question is, did the respondent judge have the authority to order the trial by jury requested by the City of Birmingham?

It is fully settled with us that the constitutional right of trial by jury does not extend to trials for the violation of city ordinances.--City of Birmingham v. Williams, 229 Ala. 101, 155 So. 877.

The right of appeal to the circuit court and trial by jury on such appeal are purely statutory.--City of Birmingham v. Williams, supra.

An appeal from the recorder's court to the circuit court is authorized by § 587, Title 37, Code 1940, which section reads as follows: 'In any case involving the validity of an ordinance of the city, tried before the recorder, the council may take an appeal, without bond, to the circuit court or court of like jurisdiction; and in any case the defendant may take an appeal to such court by giving bond with good and sufficient sureties, payable to the city, to be approved by the recorder or officer trying the case, conditioned to be void if the defendant appears before said court, until discharged by law to answer said charge, but unless such bond be given within five days from the date of the judgment, no appeal shall be allowed from such judgment. An appeal bond for more than three hundred dollars shall in no case be required, but when...